By Stuart Eustice, Partner, William Gordon, Senior Associate and Henry Van Til, Graduate Lawyer
The recent New South Wales Court of Appeal’s decision in St Paul’s College Ltd v Allan [2026] NSWCA 22 considers the adequacy of pleading a breach of duty of care in negligence claims. The decision provides useful guidance on the required level of specificity when identifying the precautions said to have been required to avoid a risk of harm.
While the appeal ultimately failed, the Court’s observations regarding the articulation of pleadings are of broader relevance in negligence litigation.
The respondent alleged that he suffered harm during his time as a high school student by conduct of the boarding-house master in 2001. The claim was plead in negligence and the respondent relied upon the existence of a non-delegable duty of care.
The appellant challenged the respondent’s proposed amended statement of claim (ASOC), arguing that the pleading did not properly identify the material facts said to constitute a breach of duty. It was argued that the ASOC did not articulate the precautions that the school acting reasonable should have taken to avoid the relevant risk of harm.
The primary judge allowed the ASOC to be amended, whereas the appellant sought leave to appeal the decision, arguing that the pleading was inadequate and should have been struck out.
Leave to appeal was granted, but the appeal was dismissed. Although the Court accepted that the pleading of the ASOC was poorly drafted and substantially deficient in articulating the claimed breach of duty, it considered that the claim nevertheless disclosed a viable pathway of causation, particularly in light of the recent High Court decision of AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2 (AA), which determined that an institution may be liable for the abuse of its delegates if a non-delegable duty is present.
However, the Court made forthright observations of the “venial sins of drafting” committed by the respondent and recognises that but for the High Court’s decision in AA, the ASOC was deficient and the appeal would have been substantially upheld.
The central issue identified by the Court was that many of the alleged breaches were pleaded at too high a level of generality.
Several particulars alleged that the application had inadequate systems in place to prevent and detect abuse. However, the Court observed that the particulars in this category did not outline the precaution that was said to have been required, and thus the acts or omissions which constituted the failure were still unknown to the appellant.
In particular the Court noted:
“In each case the particular refers to a generic outcome: a failure to ensure that a state of affairs existed; a failure to implement a system, protocol, method or set of safeguards that would produce a certain result; a failure properly to supervise the boarding master; and so on. None of those particulars specify the acts or omissions…. A defendant confronted with such particulars would reasonably ask: ensure how; implement what sort of system; supervise in what “proper” manner; etc. These particulars do not inform the applicant of the case it is expected to meet.”
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“The ASOC does not make any attempt to articulate how educating students and their families in general, or the respondent and his family in particular, would have prevented the abuse occurring.”
The Court emphasised that a defendant is entitled to understand the precise case it must meet. Without identification of the relevant precaution, it is difficult to assess matters such as the probability of harm, the burden of taking the precaution, and whether the alleged omission was reasonable in the circumstances.
The Court also noted that the issue of causation is closely connected to the articulation of the breach. The respondent alleged in the ASOC that the applicant’s failure to provide education about the risks of abuse, however the Court recognised that the pleadings did not articulate how such education would have prevented the alleged incident in circumstances where no pattern of prior abuse had been pleaded.
Other allegations in the ASOC referred to permitting the boarding-house master to have unfettered access to the plaintiff. However, the particulars did not articulate why the access was inappropriate in the relevant context or what alternative supervisory measures should have been reasonably implemented.
The Court stressed that a negligence claim must be supported by a proper foundation, and that it is not acceptable to file a claim and then use court processes to determine whether the claim is supportable. It was emphasised that prior to the prerequisites for non-delegable duty claims being broadened by the decision of AA, conclusory pleadings were not sufficient to file a negligence claim.
A negligence pleading must identify with sufficient specificity the precautions that a reasonable defendant should have taken to avoid the risk of harm. Pleading generic failures without particularising the relevant acts or omissions may render a pleading embarrassing. Clear articulation of alleged precautions is critical to the issue of causation.
The pleading process is not to be used as a means of discovering whether a cause of action exists. However, where liability may arise from breach of a non-delegable duty, Courts may be reluctant to strike out pleadings that otherwise disclose a viable claim notwithstanding deficiencies in articulation.
Therefore, reasonable steps ought to be taken by the defendant following service of the pleadings to ascertain what case they need to answer.
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